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America after Roe v Wade

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The overruling of the Roe v Wade decision by the Supreme Court in the Dobbs decision marks a significant moment in the abortion debate, while highlighting the deep fissures in America’s body politic.

The Supreme Court ruled that ‘The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment’.

Leaving aside for the moment the abortion issue, it should be acknowledged that the Roe v Wade decision of 1973 was always problematic from a legal perspective, in that for many, the judges indulged in a constitutional overreach so as to establish’ a constitutional right’ to abortion. The late Justice, Ruth Bader Ginsburg, an articulate advocate of abortion, was critical of the Roe v Wade decision, even saying in 2012 that it was a ‘most undemocratic decision’ in that nine unelected judges effectively made policy. For many conservatives the Dobbs decision is primarily about the nature of the American Constitution and the role of judges in shaping public policy.

Despite the fact that the Supreme Court ruling had been foreshadowed months ago, the shock has been real. It is not the first-time previous rulings had been overturned; both the Dred Scott and Plessy ruling which, to their shame had upheld slavery and segregation, were overturned more than fifty years later. In 1973 the decision of nine rather elderly white men changed overnight the abortion landscape, by a ruling that from the beginning has been problematic constitutionally.

The Dobbs decision heralds a new stage in the abortion debate. The editors of America, a Jesuit publication, put the case ‘that as a constitutional matter, the regulation of abortion is primarily a question for state legislatures; as a moral matter, unborn human life has sacred dignity and is deserving of legal protection; and finally, as a political matter, the complicated and divisive questions surrounding abortion cannot be effectively addressed when the only real venue for the issue is in the Supreme Court.’  The Supreme Court decision accords with this perspective.

 

'The reversal of the Roe v Wade decision does not ban abortion, but rather gives over abortion legislation to the fifty American States.'

 

The reversal of the Roe v Wade decision does not ban abortion, but rather gives over abortion legislation to the fifty American States: ‘It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives’. Some States will largely ban abortion, while the majority will allow abortion with some restrictions, while others will have among the most liberal laws in the world allowing abortion up to birth. In many of the States where there may be restrictions, they will be in line with the situation in much of the world where abortion is legal but restricted.

American public opinion itself, has been deeply divided on abortion for decades. While a plurality has supported the Roe decision, a plurality has also favoured a range of restrictions which have been problematic under Roe v Wade. Originally, the Roe v Wade decision had revolved around the idea of viability of the foetus, but increasingly Court decisions across America were ignoring this condition, while medical advances were pushing viability back to around twenty weeks.

This debate is perhaps like no other, in that there are many individuals of good will, decency and principle on both sides of the abortion debate.  There is a huge number of women who are pro-choice and who are mothers, and who are people of principle. Similarly, that are a huge number of women who are pro-life, and not anti-women. Most of the leaders of right to life in America have been women. Dr Mildred Jefferson, one of the movement’s founders, was the first black woman to graduate from the Harvard Medical school. Nellie Gray was a remarkably committed activist.

Unhelpful stereotypes abound in the debate. There are pro-life feminists and people of no religion who are pro-life, and there are religious people who are pro-choice. Liberals need to acknowledge that pro-life liberals have been marginalized, while conservatives need to remind themselves not to allow the pro-life position to be captive to a different conservative agenda.

There has been a growing polarization around abortion in American politics. And this process had largely begun on the left in American politics. Pro-lifers have been virtually expelled from the Democratic Party, with Emily’s List aggressively seeking to purge the party of pro-life voices. It was the left that first applied an abortion litmus test for appointments to the Supreme Court, a test now applied by the right in regards to such appointments. Democrat politicians like Obama, Biden and Hilary Clinton who had spoken of abortion as a tragic choice that should be ‘legal, safe and rare’, no longer use such moderate language. At the same time the pro-life cause has risked becoming hostage to the right of American politics. It is perceived by many as a protagonist in the culture wars and as an enemy, for example, of the LGBTI community, where there is no inherent reason to do.

As the pro-life challenge has grown, pro-choice positions have become more radical – supporting third semester abortions, partial birth abortion, abortion to eliminate Down Syndrome children, abortion on the basis of gender selection. And while the defence of the autonomy of women and their right to choose have become more absolute, the science has moved decisively against any argument that the unborn are simply parts of their mothers’ bodies. Advances in science mean that those who were voiceless can now be seen in the womb.

 

'Criminalization of abortion in some States, in some or all circumstances, is problematic in that very few are comfortable with the idea of imposing penalties on women who in most cases are making difficult decisions of the most personal nature.' 

 

In 2019 Steve Jacobs completed a PhD at the University of Chicago. He did so in the face of considerable internal opposition at the University. A key part of his research was a survey of nearly 5,577 academic biologists worldwide. He asked the simple question – ‘when does human life begin?’ 96 per cent  affirmed that a human life begins at conception. There is a unique biological human from fertilisation. It is an uncomfortable fact of biology for the debate. It is not the potential human life expression that is found in the language of the original Roe v Wade decision in 1973, when the U.S. Supreme Court had suggested there was no consensus on ‘the difficult question of when life begins’ and that ‘the judiciary, at this point in the development of man’s knowledge, [was] not in a position to speculate as to the answer.’ A curious position then, but one that is untenable today.

Proponents of abortion who accept the biology fall back on the idea of personhood. At some point the individual achieves personhood, and only then does the child achieve legal recognition. It is not an unreasonable view though at what point is personhood achieved is the question, and to some extent it is an arbitrary point that imposes a non-scientific judgment in the process. And if the point is birth, as seems to the logic of the pro-abortion position in America, that a babe delivered at 20 weeks is fully protected by the law as a legal person, while a babe at nine months in the womb can be aborted. This seems uncomfortably close to the legal basis for slavery in America in the Dred Scott case of 1857.

At about twenty weeks, the foetus feels pain, is male or female, has a heartbeat, and there is brain activity. To simply ignore the humanity of the unborn child in the name of the rights of the mother, with no legal protections, strikes at the heart of a concept of the law protecting equally including those without a voice. Daniel Berrigan SJ, the prominent anti-war activist, was critical of a view that the lives of the unborn are considered among those that do not deserve rights and dignity. ‘Civilized people,’ said Father Berrigan, ‘have no business disposing of life at whatever stage.’

Uncomfortable challenges face both sides of the debate.

Criminalization of abortion in some States, in some or all circumstances, is problematic in that very few are comfortable with the idea of imposing penalties on women who in most cases are making difficult decisions of the most personal nature. And there are many medical people who are committed to the care as they see it of the mother. I would draw two caveats. There is growing pressure, and in places, even compulsion, from the time of training onwards, for nurses and doctors to participate in abortions even if they have conscientious objections. Secondly, I have no time for Planned Parenthood, a wealthy big business, founded by a proponent of eugenics, as ruthless in pushing for unrestricted abortion as the National Rifle Association in opposing gun controls, and credibly accused in some branches of trading in body parts.

The pro-choice position has become adept at not addressing the status of the preborn. Euphemisms have now changed to ‘forced motherhood’. Describing the foetus as potential life is simply not sustainable - science is science, and just because the foetus in the womb has no voice or name, he/she cannot be simply ignored. There are arguments to be made around the relative claims of an embryo and a fully developed foetus, but if no rights are to be granted at any stage to the human life in the womb, then there is no room for dialogue.

This latter point brings us to point of rights, in our western tradition there are no absolute rights – there can be competing rights, and sometimes a difficult balance had to be struck (which was acknowledged by early proponents of abortion). Our right to freedom of speech and expression can be limited by laws around hate speech and the like. In the American context, the constitutional right to bear arms must surely be subject to common sense restrictions around the safety of the community. Private property rights are not absolute and have to be measured against the common good, including environmental concerns. While at the moment there is no much appetite for conversation and dialogue, ultimately the issue of competing rights needs to be addressed by all.

I’m very much aware that I’m a celibate male writing about an issue that has unique relationship to women. The implications for legislation around abortion are incredibly complex and challenging. The overturning of Roe v Wade is not the end of the abortion debate. Steve Jacobs’ research suggested a middle ground ‘that both a majority of pro-choice Americans (53 per cent ) and a majority of pro-life Americans (54 per cent ) would support a comprehensive policy compromise that provides entitlements to pregnant women, improves the adoption process for parents, permits abortion in extreme circumstances, and restricts elective abortion after the first trimester.’

For Catholics the challenge is acute. Catholic churches have been targeted by vandals and arsonists. Catholics working in areas of social advocacy feel vulnerable. It is not in the church’s interest to become a pawn in the culture wars nor to allow the polarization in American society to become a feature within the community of Church.

Let me close with part of the statement of Cardinal Cupich of Chicago:

This moment should serve as a turning point in our dialogue about the place an unborn child holds in our nation, about our responsibility to listen to women and support them through pregnancies and after the birth of their children, and about the need to refocus our national priorities to support families, particularly those in need.

The Catholic Church brings to such a conversation the conviction that every human life is sacred, that every person is made in the image and likeness of God and therefore deserving of reverence and protection. That belief is the reason the Catholic Church is the country’s largest provider of social services, many aimed at eliminating the systemic poverty and health care insecurity that trap families in a cycle of hopelessness and limit authentic choice.

 

 

 

 


 

Fr Chris Middleton SJ is the rector of Xavier College in Melbourne.

Main image: People protest in response to the Dobbs v Jackson Women's Health Organization ruling in front of the U.S. Supreme Court on June 24, 2022 in Washington, DC. The Court's decision in Dobbs v Jackson Women's Health overturns the landmark 50-year-old Roe v Wade case and erases a federal right to an abortion. (Brandon Bell/Getty Images)

Topic tags: Chris Middleton, RoevWade, Abortion, Supreme Court, Dobbs

 

 

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Existing comments

The current church and God are not the same thing as made clear by the dramatic drop in numbers of believers attending any Christian denomination over the past generation.
As the scriptures do not comment on abortion directly maybe it is timely to remind ourselves that the church does not decide on a person's decisions that is between the person and God. It is called a personal relationship with our Lord.


Jan Wright | 07 July 2022  

A woman’s reproductive health issues should be between herself and her doctor. It is highly personal and subjective.


Pam | 07 July 2022  
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The scam in the pro-choice argument (repeated in the minority judgement in the Dobbs case) is that pro-choicers are always careful to say that the decision should be left to the woman in consultation with her doctor and other people whom she chooses to consult.

Actually, the only thing a woman contemplating abortion needs to know from her doctor is whether the procedure will be safe now and won't have uncomfortable medical consequences later. Doctors aren't experts in moral philosophy. And she doesn't have to consult anybody else. She's only forced to consult a doctor because the abortionist will demand that so as to protect their insurance.

But that would be tantamount to saying that the decision is purely at the whim of the woman which, even before the fifteen weeks is up, is still something the pro-choicers prefer not to say because that baby still hangs around like a ghost in the conversation. It's always masked as woman-in-consultation-with when, really, it's just whatever the woman wants.


roy chen yee | 13 July 2022  

Yes, all life is sacred and human beings are made in the image of God. However, much as I abhor the thought of abortion for those reasons, I know, as a woman who had a child at 18, who was consequently adopted, that there are circumstances where such a decision may be made, as in the case of the 10 year old girl, pregnant as a result of incest. Sometimes the future welfare and mental health of the mother may have to take precedence over everything else. As well, if mothers in poverty or other difficult circumstances are to carry through pregnancies to full term, they should be supported after the births to be able to care adequately for those children.


Marilyn | 07 July 2022  
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I wholeheartedly agree with you Marilyn.


Ginger Meggs | 08 July 2022  

If we are to insist that personhood ("a human life" as opposed to 'human life') begins at conception, how do we explain even to ourselves the reality that God appears to discard a high percentage of them ( through early spontaneous abortion)? Some have calculated as high as 80%. For me science gave certainty and science has now taken certainty away.And for this I am both grateful and humbled.


Margaret | 07 July 2022  

I engaged on this topic in a web Q&A forum. I was stunned to find that many Red states where they expect Abortion to be illegal in all cases also make it difficult to get any form of contraception. There are many stories of life threatening pregnancies going untreated.
Seems like everything is very political in the US. I have never been pro-abortion and think ideals are worth promoting but I understand the very real concern that young people are naturally going to want to have sex; indeed some will have it when demanding they not have it or get pressured to have it.
It would be good to save yourself, but to remove the choice to prevent unwanted pregnancies is going to lead to many desperate calls for abortion. I think contraception is the lesser of evils here.


Martin Nicol | 07 July 2022  
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The idea of contraception leads to the idea of abortion. The idea that contraception is not permissible and that the parents must be responsible for the consequences of their actions leads to the idea that abortion, similarly, is impermissible.

This is all part of the general idea that it is permissible to equivocate with sin, another manifestation of which is the notion of 'harm minimisation' in the decriminalisation of drugs or the use of needle exchanges.

Human behaviour is influenced by incentives and disincentives. If you coddle a disincentive, it turns into an incentive.


roy chen yee | 13 July 2022  

An excellent article, thank you. I am a pro-choice feminist who also sees abortion (when not mandated by pressing health concerns) as a tragic choice, and even before the clarity about foetal life, couldn't see how it was logical to claim that a foetus is not a human being.

That being said, I have also been acutely uncomfortable about the absence of 'right to lifers' from the peace and environmental movements. Indeed, in the case of some individuals and leaders, antagonistic to activists in these movements! I have experienced this personally.


Maxine Barry | 08 July 2022  

It is a pity neither (Dr) John Frawley nor John RD seem to be participating in these Eureka Street forums any longer. John Frawley could certainly explain that abortion is a medical procedure which can have very serious health consequences on the woman undergoing it. It is not something to be undertaken lightly. John RD is well versed in Thomistic Philosophy and Theology which are the basis on which the Magisterium is built and explained. To many this is a 'conscience issue'. My query to them would be: 'How is your conscience formed?' I am not sure that the downturn in church attendance in the West is final, nor do I think changing to suit the tide of the times will turn things round. Christianity seems to thrive and grow after persecution, which I think is happening to some extent in the contemporary West.


Edward Fido | 08 July 2022  

“I have no time for Planned Parenthood, a wealthy big business, founded by a proponent of eugenics,” writes Chris Middleton. Shoot the messenger if you can’t defeat the message. Particularly if you belong to a church of inestimable wealth and political influence that conceals its transgressions from justice. I remain unconvinced with his argument.


Rodney Crute | 08 July 2022  

This debate should not be about the Church becoming “a pawn in the culture wars” but about doing what is right. The Church teaches. “Abortion and infanticide are abominable crimes” (Gaudium et Spes, 51). If evil is not opposed, it ultimately wins. Hence, as is rightly noted, Emily’s List has virtually forced pro-lifers out of the Democratic Party and has done the same in Australia in the ALP. Amnesty International, founded to campaign for the rights of prisoners of conscience, now denies conscientious objections of medical professionals to be complicit in the abortion process, which it favours, for any reason, up to birth, and including sex-selective abortions.
In 2019, New York’s Gov. Andrew Cuomo, a Catholic, celebrated legalizing abortion until birth calling it “a historic victory” and directing landmarks to be lit in pink. Abortions are now celebrated, deemed a human right, and opponents are said to be enemies of women.
Into this hostile environment, many Christians seek to nuance their position on abortion. But lukewarm Christianity only assists the enemy, and one risks, in Dante’s words, becoming neither for God nor for Satan, but for oneself.


Ross Howard | 09 July 2022  

If life begins at conception, whence monozygotic ('identical') twins? Does each have half a human life, or did one life come later, post-conception? Scientific analyses are not always helpful; sadly, though, they are often all that will be acknowledged.


Richard Jupp | 10 July 2022  

Whether or not biology can say when human life begins cannot necessarily be determined from Jacobs' straw-poll of biologists; invoking the rigours of a scientific discipline requires rigourous scientific methodology, which was lacking - see:
https://theconversation.com/defining-when-human-life-begins-is-not-a-question-science-can-answer-its-a-question-of-politics-and-ethical-values-165514


Richard Jupp | 10 July 2022  
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Life begins at conception because of Occam's Razor. If we leave the zygote alone, it will become a foetus and if we leave the foetus alone, it will become a human being existing outside the womb.

On the other hand, if we want to muse about when something in vitro begins to look less like a tadpole and more like a primate, or when it begins to twitch, we are only employing values to assert that appearance or movement is a criterion.

The simplest way is to leave it alone and see how it turns out. If it turns out human, it must have started human.


roy chen yee | 11 July 2022  

From the comments posted on this article, opinion is as polarised on this issue as it ever was.


Edward Fido | 13 July 2022  

For a credible and powerful response to Chris Middleton, see the recent article by Emily Clark at < https://www.abc.net.au/news/2022-07-16/why-america-is-so-divided-on-abortion-and-the-men-who-planned-it/101188994 > and be afraid.


Ginger Meggs | 16 July 2022  

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